Will: The shame of deference

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WASHINGTON  Two of the three most infamous Supreme Court decisions were erased by events.

The Civil War and postwar constitutional amendments effectively overturned Dred Scott v. Sandford (1857), which held that blacks could never have rights that whites must respect. Plessy v. Ferguson (1896), which upheld legally enforced segregation, was undone by court decisions and legislation.

Korematsu v. United States (1944), which affirmed the president's wartime power to sweep Americans of disfavored racial groups into concentration camps, elicited a 1988 congressional apology.

Now Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California, San Diego, is campaigning for a Supreme Court "repudiation" of the Korematsu decision and other Japanese internment rulings.

A repudiation would be unprecedented, but an essay that Irons is circulating among constitutional law professors whose support he seeks is timely reading in today's context of anti-constitutional presidencies, particularly regarding war powers.

On Feb. 19, 1942, President Franklin Roosevelt authorized the military to "prescribe military areas ... from which any or all persons may be excluded."

So 110,000 Americans of Japanese ancestry, two-thirds of them born here, were sent to camps in desolate Western locations.

Supposedly, this was a precaution against espionage and sabotage. Actually, it rested entirely on the racial animus of Gen. John DeWitt, head of the Western Defense Command.

Using government records, Irons demonstrates that because senior officials, including Solicitor General Charles Fahy, committed "numerous and knowing acts of governmental misconduct," the court based its decision on "records and arguments that were fabricated and fraudulent."

Officials altered and destroyed evidence that would have revealed the racist motives for the internments. And to preserve the pretext of a "military necessity" for the concentration camps, officials suppressed reports on the lack of evidence of disloyalty or espionage by Japanese- Americans.

The 1943 "Final Report" on Japanese "evacuation," prepared under DeWitt's direction and signed by him, said a Japanese invasion was probable, that "racial characteristics" of Japanese-Americans predisposed them to assist the invasion, and that it was "impossible" to distinguish loyal from disloyal Japanese-American citizens, if there were any: "The Japanese race is an enemy race and while many second- and third-generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted."

When War Department officials objected to such assertions and demanded revisions, DeWitt ordered all copies and records of the original report destroyed, but one copy escaped DeWitt's cover-up. The court, however, never saw it, remaining unaware of the racist basis of the theory of internment's "military necessity."

Also kept from the court was a report, prepared for the Chief of Naval Operations and made available to DeWitt, estimating potentially disloyal Japanese as just 3 percent of the Japanese-American population, and declaring that these were "already fairly well known to naval intelligence" and could be quickly apprehended, if necessary. The suppressed reports' conclusion: "The entire Japanese problem has been magnified out of its true proportion, largely because of the physical characteristics of the people (and) should be handled on the basis of the individual ... and not on a racial basis."

Fahy ignored an assistant attorney general's warning that not advising the court of this report would constitute "suppression of evidence." Furthermore, DeWitt justified internment because "the interception of unauthorized radio communications" emanating from along the coast "conclusively" accounted for Japanese submarine attacks on U.S. ships. The FBI, however, reported "no information" of "any espionage activity ashore or ... illicit shore-to-ship signaling." The Federal Communications Commission investigated "hundreds" of reports of suspicious radio communications but found nothing to confirm DeWitt's accusations. Yet Fahy in his oral argument assured the court he could guarantee the veracity of "every line, every word, and every syllable" of DeWitt's report, and that "no person in any responsible position has ever taken a contrary position."

The Korematsu decision reflected perennial dangers: panic, and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies. It is less important that the decision be repudiated than that it be remembered.

Especially by those currently clamoring, since Boston, for an American citizen  arrested in America, and concerning whom there is no evidence of a connection with al-Qaida, the Taliban or other terror network  to be detained by the military as an "enemy combatant." The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.

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